An authority's test purchase failed

Market surveillance does not wait for complaints. Regulation (EU) 2019/1020 requires authorities to perform appropriate checks on the characteristics of products on an adequate scale, by means of documentary checks and, where appropriate, physical and laboratory checks based on adequate samples, chosen on a risk-based approach (Article 11(3)). Among the minimum powers Member States must give them is the power to acquire product samples, including under a cover identity, to inspect them and to reverse-engineer them (Article 14(4)(j)). For consumer products under the General Product Safety Regulation (EU) 2023/988, Article 23(1) applies these provisions, together with Articles 12 to 15, 16(1) to (5), 18 and 19 of Regulation (EU) 2019/1020.^[2]

When a sample fails, the authority must act. Where a product, used as intended or under reasonably foreseeable conditions, is liable to compromise health or safety or does not conform, the authority requires the economic operator, without delay, to take appropriate and proportionate corrective action within a period it specifies (Article 16(1)–(2)). The action may be bringing the product into compliance, preventing it from being made available, withdrawing or recalling it and alerting the public, or other measures listed in Article 16(3).^[2]

The operator has procedural rights. Every measure must state its exact grounds and be communicated without delay, with information on the available remedies and their time limits (Article 18(1)–(2)). Before the measure is taken, the operator must be given the opportunity to be heard within an appropriate period of not less than 10 working days, unless urgency makes that impossible (Article 18(3)). Where an operator presents test reports or certificates from an accredited conformity assessment body, the authority takes due account of them (Article 11(5)).^[2]

The GPSR adds the operator's own duties. Every economic operator cooperates with the authorities on actions that could eliminate or mitigate risks, and on request provides a full description of the risk, related complaints, known accidents and corrective measures, as well as traceability information (GPSR Article 15(1)–(3)). If the manufacturer or importer considers the product dangerous, it takes corrective measures immediately, informs consumers, and notifies the authorities of the Member States where the product was made available through the Safety Business Gateway (Articles 9(8) and 11(8)). For units of the batch an importer has not yet placed, the duty to inform the manufacturer and ensure the authorities are informed already applies before placing (Article 11(2)).^[1]